10.6. DEFENSES.

• Jurisdiction: Arizona

10.6. Defenses.

10.6.1. Gambling buyer.

One who buys property in hopes or on the gamble of securing a zoning change cannot be heard to complain when the zoning authority declines to change the overall plan for the benefit of the gambling buyer.

Palazzolo v. Rhode Island, 533 U.S. 606, 121 S. Ct. 2448, 150 L. Ed. 2d 592 (2001) (a blanket rule that purchasers with notice have no compensation right when a claim becomes ripe is too blunt an instrument to accord with the duty to compensate for what is taken; just as a prospective enactment, such as a new zoning ordinance, can limit the value of land without effecting a taking because it can be understood as reasonable by all concerned, other enactments are unreasonable and do not become less so through passage of time or title)

Bartolomeo v. Town of Paradise Valley, 129 Ariz. 409, 631 P.2d 564 (App. 1981) (land was purchased with knowledge of current zoning; claimed economic loss does not justify rezoning)

City of Tempe v. Rasor, 24 Ariz.App. 118, 536 P.2d 239 (1975)

City of Phoenix v. Beall, 22 Ariz.App. 141, 524 P.2d 1314 (1974) (one who buys property too small to develop under current zoning on gamble of securing zoning modification cannot complain when legislature declines to make change)

10.6.2. Laches.

10.6.2.1. Mere passage of time.

Mere passage of time will not instill life into a zoning ordinance which was void at its inception.

Hart v. Bayless Inv. & Trading Co., 86 Ariz. 379, 346 P.2d 1101 (1959) (court recognized that under some circumstances laches may bar attack on zoning ordinance)

Specht v. City of Page, 128 Ariz. 593, 627 P.2d 1091 (App. 1981) (a good result does not render valid that which is invalid at its inception; except for instances of laches and estoppel, court has never so held)

10.6.2.2. Unreasonable delay.

To assert laches as a defense to a challenge to a zoning ordinance or amendment, there must be an unreasonable delay in filing the lawsuit after knowledge of the facts which works a hardship.

Summit Properties, Inc. v. Wilson, 26 Ariz.App. 550, 550 P.2d 104 (1976) (facts did not show the plaintiffs had actual or constructive knowledge of the defendant's expenditures in reliance on the zoning change)

10.6.3. Special damages and standing.

10.6.3.1. Special damages requirement.

Verner v. Redman, 77 Ariz. 310, 271 P.2d 468 (1954) (neighbor sought to enjoin completion of building which would be prohibited after a proposed zoning change)

Center Bay Gardens, L.L.C. v. City of Tempe, 214 Ariz. 353, 153 P.2d. 374 (App. 2007) (property owner who owned land across the street from a proposed development project that would almost triple the existing density, double the existing mass and drop previously required landscaped setbacks had a particularized injury that satisfied the standing requirement set forth in Blanchard and Buckelew)

Blanchard v. Show Low Planning and Zoning Commission, 196 Ariz. 114, 993 P.2d 1078 (App. 1999) (mere taxpayer status is insufficient to confer standing to challenge a rezoning decision; while proximity is a factor to be considered in determining standing, a neighborhood or other discrete area may be affected by zoning changes and a landowner need not own land directly adjacent to the subject property to have standing)

Buckelew v. Town of Parker, 188 Ariz. 446, 937 P.2d 368 (App. 1996) (special damages are damages from an injury peculiar to the owner or at least more substantial than that suffered by the general public; where party specifically complains of damage from noise, littering, threats, fire and health hazards, increased criminal activity and destruction to personal property, party alleges special damages)

Perper v. Pima County, 123 Ariz. 439, 600 P.2d 52 (App. 1979) (an adjacent property owner who suffers no special damages from the granting of a variance cannot seek judicial review of the decision to grant the variance)

Manning v. Reilly, 2 Ariz.App. 310, 408 P.2d 414 (1965) (declaratory relief may not be sought when the plaintiff's property is not adversely affected by the zoning decision)

10.6.3.2. Standing in particular circumstances.

Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S. Ct. 2440, 49 L. Ed. 2d 310 (1976) (if a statute's deterrent effect on legitimate expression is not both real and substantial, and if the statute is readily subject to a narrowing construction by the state courts, the litigant is not permitted to assert the rights of third parties; however, even though a statute or ordinance may be constitutionally applied to the activities of a particular person, that person may challenge it on the basis of overbreadth if it is so drawn as to sweep within its ambit protected speech or expression of other persons not before the court)

Warth v. Seldin, 422 U.S. 490, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975) (association asserting injury to itself may have standing; association may have standing solely as representative of members; however prudential standing rules may otherwise bar an association's access to judicial process)

Epona v. County of Ventura, 876 F.3d 1214 (9^th Cir. 2017) (wedding vendors found to have Article III standing to bring First Amendment claim because they may suffer economic injury as a...